It appears that President Trump and North Korean leader Kim Jong-un really are going to meet. If an arms-control agreement with Kim’s regime is really on the table when the two get together in Singapore next month, Trump will face a decision with profound constitutional implications: whether to forge a deal unilaterally, as with the Iran nuclear deal, from which he recently withdrew the United States, or to seek congressional approval. He should choose the latter. While the Iran deal was technically legal and politically necessary, the way it was enacted in the United States undermined constitutional norms. The framers of the Constitution understood that a healthy democracy requires legislative oversight of diplomacy. Negotiations with North Korea represent a last, best chance to prevent a slide into foreign policy despotism.
In order to secure the Iran deal, the Obama administration combined the president’s diplomatic power to enter into nonbinding political agreements with his broad, congressionally granted authority to adjust sanctions in the national interest. The president made a political pledge to the other countries involved in the deal and then used his executive discretion to enforce it as domestic law.
This arrangement allowed him to enter into a diplomatic arrangement significantly affecting U.S. domestic law and likely shaping U.S. policy and foreign expectations in the region for decades, all without congressional approval. During the negotiations, Congress did pass the Iran Nuclear Agreement Review Act, which mandated reporting of the deal to Congress and delayed its implementation but did not actually require congressional approval for the deal to go into effect. The executive discretion that facilitated the agreement has now, in turn, allowed Trump to unilaterally revoke it. Even if technically legal, the practical consequences of Trump’s move—European alienation and Iranian retrenchment—are likely to be the same as if a binding treaty had been violated.
Even after years of blasting Obama’s “worst deal ever” with Iran, Trump may be tempted to follow his predecessor’s example in talks with North Korea. If he does so, he would be able to repeal many of the sanctions that the United States has placed on North Korea and effectively tie the hands of future administrations on the issue. (Trump can expect that whoever succeeds him will not have such a cavalier attitude to foreign policy.) Such a nonbinding arrangement would have most of the practical benefits of a legally binding treaty without the hassle and delay of congressional input. Future presidents would likely follow his lead. But it is the attractiveness of this approach that makes it so constitutionally troubling.
Betting on constitutional restraint from Trump or political courage from Congress is usually a loser. Nevertheless, the incentives of all the actors are well aligned.
The founders were very aware of the benefits of complete executive control of treaty making. They had a perfect example close at hand, King George III. Article II of the Constitution only allows for the ratification of treaties upon the “advice and consent” of the Senate, with a two-thirds vote needed to allow ratification. International agreements are also often statutorily authorized through passage in both the House and Senate. Both approaches carry the democratic legitimacy of legislative consultation. This popular accountability was critical to the founders. During the debates surrounding the ratification of the Constitution, Alexander Hamilton emphasized the difference between the despotic English king, who is the “sole and absolute representative of the nation in all foreign transactions,” and the United States, in which “the Senate … is to have concurrent authority with the Executive in the formation of treaties.” In fact, for much of the convention, the draft Constitution vested treaty-making power solely in the Senate, before concessions to the need for unified negotiations led to the inclusion of the president.
Nonbinding political agreements did not become common in international relations until at least 80 years after the ratification of the Constitution. And the founders certainly did not foresee the broad grants of rule-making authority to the president that made the Iran deal possible. One need not consider the Iran deal illegal to be troubled by its aberration from this founding vision. A similar arrangement with North Korea would cement this expanded executive power. More and more, the president resembles the king of England, who, as Hamilton contemptuously described, “can of his own accord make treaties of peace, commerce, alliance, and of every other description.”
An overempowered executive is a concrete threat to American democracy. Each time Congress passes a law granting the president discretion over foreign policy, repealing the same law requires a two-thirds majority to overcome the likely presidential veto. Courts, meanwhile, rarely review presidential actions in foreign policy, deeming them “political questions” beyond their purview. The president has increasingly wide discretion to favor nations according to his personal preferences, not the public interest, with little ability for the other branches to check his actions. In an age when our democratic process has been seriously damaged by foreign interference, we should be particularly wary of such grants of power. There is, however, a way to constrain that power. Due to the lack of judicial review, executive and legislative practice largely define the scope of acceptable foreign policy behavior. A public commitment to congressional review would create a strong precedent limiting the risk of executive overreach.
If the initial talks with North Korea do lead to substantive negotiations, Trump should announce that any final arrangement will be submitted to Congress, either as a treaty or statute, for approval. Democratic and Republican leadership, meanwhile, should jointly and publicly pledge to work in good faith to ensure that a reasonable deal is passed swiftly, no matter which party controls Congress. The leadership might also consider passing fast-track legislation, similar to that used in negotiating trade deals, limiting Congress’ ability to stall while still requiring congressional approval.
The president’s growth in foreign policy power has been driven in part by Congress shirking its duties. Ever since the second Iraq war vote, Congress has consistently avoided the political risk of active participation in foreign policy, preferring instead to be silent at best or obstructionist at worst. Obama resorted to questionable methods to push through the Iran deal because there was little hope of an intransigent Republican-controlled congress ever approving the agreement in 2015. But the politics are different now. As of yet, there is no clear political opposition to a North Korea deal, as there was with Iran. A reasonable agreement to denuclearize North Korea could enjoy broad bipartisan support.
Congressional approval would also bolster international support for the agreement: After Trump’s withdrawal from both the Iran deal and the Paris climate accord, allies have good reason to wonder whether any agreement with the U.S. based on executive action will survive a change of party in the White House. Submitting the agreement to Congress would be an unexpected show of governing unity on the world stage. It would both reinforce the deal and help repair America’s damaged credibility.
Betting on constitutional restraint from Trump or political courage from Congress is usually a loser. Nevertheless, the incentives of all the actors are well aligned. Given the widespread unpopularity of President Trump and the likely midterm losses for the Republican Party, North Korea and other parties might be skeptical of the president’s ability to deliver a lasting deal. A public commitment by bipartisan congressional leadership would increase his negotiating leverage. Congressional Republicans would be able to demonstrate their support for the president while drawing a strong contrast between President Trump’s relative restraint and Obama’s overreach. And Democrats would be able to portray themselves as holding the president accountable, asking tough questions during hearings while also sharing credit for a landmark deal.
Unfortunately, if Trump decides to execute the deal unilaterally, there is not much Congress can do. Assuming Republicans defer to the president and that he is willing to use the veto to ensure the deal’s success, Democrats would need to win veto-proof majorities in both houses to restrict the sanction-relief authority previously granted to the president. If Democrats framed the issue as a constitutional crisis, Republicans could use their support of the Iran deal to fairly accuse them of hypocrisy. But silent acquiescence would be even more damaging to constitutional norms. Depending on the coming election and the course of negotiations, Democrats may have the leverage to take a principled stand for congressional review, in which case they should do so vigorously. If they object to the process, not the substance, of the deal, they may even be able to win some support from Republican critics of Obama-administration overreach. However, all sides, and the nation, would be better off if a bipartisan pledge were made as early as possible.
A public commitment to legislative review would steer us away from 18th-century England and toward the democratic practice envisioned by our Constitution and founders. Ultimately, it is the voters who are responsible for enforcing adherence to the Constitution. Simply bemoaning congressional cowardice and executive aggrandizement is not enough. We must demand that our representatives govern according to the spirit of the Constitution, not just the letter. North Korea is where we should make our stand.